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Sunday, October 22, 2006

Did Reagan lead the Supreme Court?

Now and then I come across some really lame comment that sticks in my craw and have to comment on it. A lefty named Stirling Newberry has managed to annoy me. It’s not just that he wears a bow tie either.

Newberry is upset that some people are invoking the name of Ronald Reagan against George Bush. Not that Newberry likes Reagan or Bush for that matter. He in fact thinks Reagan was a big government conservative. Not that Newberry dislikes big government he prefers big government with people like himself running it.

But Newberry makes the following statement: “a Reagan led Supreme Court even ruled that states could pass laws against particular sex acts between consenting adults, even when the (sic) intended to enforce those laws in a discriminatory way.”

First lets get the nonsense out of the way. There was never a Reagan led Supreme Court. Presidents don’t led the court. They can only appoint a justice when a vacancy occurs and then only with the approval of the US Senate. But more on that shortly.

I want to get down to the decision in question, which Newberry refers to but doesn’t name. In Bowers v. Hardwick the Supreme Court upheld sodomy laws in Georgia. That remained in effect until the court in Lawrence v. Texas overturned itself.

The court was led, not by Reagan, but by Chief Justice Burger who was appointed by Nixon. The odious decision was written by Justice White, who was appointed by John F. Kennedy. The majority favoring the decision included Justice Powell, another Nixon appointee; Justice Rehnquist, another Nixon appointee and Justice O’Connor, a Reagan appointee.

So out of the five justices who voted to uphold the law only one of them was appointed by Reagan. The others were appointed by Nixon and approved by a US Senate controlled by Democrats and the author of the decision was appointed by a Democrat. How Reagan could be held responsible for this is beyond me.

In addition I doubt that any of these justices were asked how they would vote on a sodomy law. I don’t think they were appointed with this in mind nor were they confirmed with this in mind. In fact this lack of intention becomes clear if we look at the dissenting judges.

The author of the dissent was Justice Blackmun. He too was a Nixon appointee. So the author of decision in question, which Newberry is attacking, was appointed by a Democratic president while the lead dissenter in the decision was appointed by a Republican. No one said this was neat even if Newberry implies as much.

Another dissenter was Justice Brennan. He was appointed by Republican Dwight Eisenhower. Justice Thurgood, appointed by Lyndon Johnson, also dissented as did Justice Stevens who was nominated by another Republican, Gerald Ford.

So exactly how was Reagan leading or responsible for this court? No answer is given by Newberry.

But let’s look at the Reagan legacy in the decision that overturned the decision. In Lawrence v. Texas the Bowers decision was rejected by the Court and antigay sex laws were declared unconstitutional. It was a six to three decision and most the old justices were gone. So who decided what here.

The majority decision to overturn Bowers was written by Justice Kennedy, a Reagan appointee. He was supported by Justice Stevens who was still on the bench and who had been appointed by a Republican. Justice Souter also supported the decision and he was appointed by the first President Bush, also a Republican. Also supporting the decision was Justice Ginsberg, appointed by Clinton; Justice Breyer, also appointed by Clinton; and Justice O’Connor who had changed her position on the issue. So of the five Justices who overturned the Bowers decision two had been appointed by Reagan and three had been Republican appointees.

The US Supreme Court is regulated in a manner which is intended to make it difficult or impossible for any one president to determine how it decides. Justices are appointed for life and unless they die or retire no vacancy takes place. The president can appoint but without Senate approval his nominee won’t be seated.

Newberry’s comment was either silly and indicative of being uninformed or it was dishonest. I’m not sure which. There are many things for which Reagan can be justly criticized but the Bowers decision is not one of them.